Jeff Merkley’s claims about immigrant children in ‘cages,’ access to a Texas shelter

“When I was at the center at McAllen Border Station, this is the processing center, earlier and I was admitted there and I did see the people, hundreds of children locked up in cages there at that facility. … They have big cages made out of fencing and then wire and nets stretched across the top of them so people can’t climb out of them. …

“Every time I probed yesterday on the circumstances, the response was just basically a generic, ‘This is what’s required for security, this is what’s required for control.’ And in a lot of these areas that I saw yesterday morning at the processing center, it’s just a concrete floor and people are being given these space blankets to sleep on. Now, a space blanket is a very thin piece of — the equivalent of foil. And so, obviously, a very uncomfortable situation to be in.”— Sen. Jeff Merkley (D-Ore.), in a CNN interview, June 4, 2018

“When my team called [to request access to a shelter for immigrant children in Brownsville, Tex.], they were told it’s the policy not to admit anyone into these centers and we would not be allowed to enter it.”— Merkley, in the same CNN interview

Updated with a fuller response from Merkley’s office.

Sen. Jeff Merkley, a critic of President Trump’s immigration agenda, went down to the border to see firsthand how immigrant families were being treated by federal agencies.

The verdict? Not good. On CNN the next morning, Merkley described a facility in McAllen, Tex., where “hundreds of children” were locked up in cages. His comments reminded us of some photos that recently went viral, showing children in chain-link fence enclosures at an immigration processing center in Nogales, Ariz.

In the days before Merkley’s trip, some Democrats — including former Los Angeles mayor Antonio Villaraigosa and Jon Favreau, a former speechwriter for President Barack Obama — tweeted pictures of the Nogales facility and criticized the Trump administration for holding immigrant kids in draconian settings.

It turned out the Nogales photos were taken during the Obama administration, in 2014, as several fact-checkers were quick to note. Favreau and Villaraigosa deleted their tweets. But then Merkley said he saw these cages with his own two eyes in McAllen.

We decided to investigate some of the senator’s claims from the border. The Trump administration forcefully pushed back on Merkley’s statements. Let’s dig in.

The Facts

The gang violence in El Salvador, Honduras and Guatemala has led to a wave of immigrants seeking refuge by the thousands in the United States since 2014. Politicians have debated for years how to handle this influx, and the Trump administration announced in May that it would prosecute as many adults apprehended at the border as possible. Although the Trump administration is not the first to separate immigrant children from their parents, the practice is on the rise because of this “zero-tolerance” policy.

Southwest border apprehensions have been spiking recently, with sharp year-over-year increases for the months of March and April, according to data from U.S. Customs and Border Protection (CBP). Of the nine border sectors stretching from the Pacific Ocean to the Gulf of Mexico, the “Rio Grande” sector in Texas consistently sees the highest number of apprehensions for families and unaccompanied immigrant children.

From October to April 30, authorities apprehended 49,622 family units along the U.S.-Mexico border, 61 percent of them in the Rio Grande sector. Out of 26,001 unaccompanied minors apprehended in the same period, 46 percent crossed through the Rio Grande sector.

Minors who are apprehended crossing the border in the Rio Grande sector usually are sent to a “central processing center” in McAllen. The facility can hold up to 1,000 kids, according to the McAllen Monitor. Children are held at these centers for no more than three days, and then they’re transferred to the Department of Health and Human Services, which places them in a temporary shelter and then, eventually, in homes or licensed foster-care facilities.

“Those children are being well taken care of,” Attorney General Jeff Sessions told radio host Hugh Hewitt on June 5. “Within 72 hours, they’re taken to the Health and Human Services to be sure they’re properly cared for.”

But Merkley described it on CNN as “a very uncomfortable situation.” After touring the McAllen processing center, Merkley described hundreds of children locked up in “big cages made out of fencing and then wire and nets stretched across the top of them so people can’t climb out of them.” He added that in some parts of the facility, “it’s just a concrete floor and people are being given these space blankets to sleep on.”

We reached out to Merkley’s office to verify his claims and were told the senator and his staff were not allowed to take pictures inside the McAllen facility. But we found photos of the same McAllen processing center that show the chain-link fence enclosures Merkley spotted. The photos were taken by the McAllen Monitor and by Rep. Jim McGovern (D-Mass.), who took his own trip to the border in 2014.

While we can’t corroborate Merkley’s claim that he saw “hundreds” of children in these chain-link fence enclosures, it seems clear from the photographs we found that Customs and Border Protection does hold children in fenced enclosures at the McAllen facility. Trump administration representatives did not deny this.

“These short-term facilities do not employ the use of ‘cages’ to house UACs [unaccompanied alien children], but portions of the facility make use of barriers in order to separate minors of different genders and age groups,” an administration official said. “This is for the safety and security of all minors in the custody of the United States government.”

The official added, “It should be noted that DHS was able to accommodate a last-minute request from Senator Merkley’s staff, and the senator’s staff attempted to enter the facility and record children — in violation of their privacy rights.”

For what it’s worth, Merkley was let into the DHS facility in McAllen, but staff for Sen. Robert Menendez (D-N.J.), the ranking member of the Senate Foreign Relations Committee, were not allowed into a similar DHS facility in California with nine days’ notice, according to Menendez.

Merkley said he saw “wire and nets stretched across the top” of the chain-link fence enclosures. But in the admittedly outdated photos we saw from 2014, it’s difficult to determine whether anything is covering the top. This is key, considering there’s a dispute whether to call it a “cage” or an “enclosure.” McGovern’s photos appear to show thin mesh netting on top. One of the McAllen Monitor photos appears to show the same in the background.

Merkley told CNN that he saw only concrete floors and space blankets in some areas of the McAllen facility. The photos we saw show that the enclosures have metal benches inside and what look like gym mats. People were huddling in foil blankets in some of the photos we saw, just as Merkley described.

The lesson here is that, although some of Trump’s critics used outdated photographs from 2014 to attack his immigration policies, the practice of holding children in chain-link fence enclosures continues. Merkley may not have pictures to back up his claim, but the Trump administration says it uses “barriers,” and other pictures of the same McAllen facility bear out much — but not all — of what the senator claimed.

“This is an enormous warehouse with chain-link fencing,” said Astrid Dominguez, director of the Border Rights Center at the ACLU of Texas. “I’ve been there when the numbers are high, and I’ve been there when the numbers are low, and I’ve seen kids and parents in there.”

‘It’s the policy not to admit anyone into these centers’

Merkley also visited a facility in Brownsville, Tex., where the HHS Office of Refugee Resettlement (ORR) and a contractor, Southwest Key Programs, run a shelter for immigrant children waiting to be placed with relatives or in a foster-care program.

These children are under staff supervision at all times and spend an average of 51 days in ORR shelters, according to HHS figures. In 85 percent of cases, the children are then resettled with their parents or close family members in the United States.

Merkley wanted to know what it was like inside the Brownsville shelter, and he streamed his visit on Facebook Live. But all viewers got to see was Merkley arguing outside a strip mall with people who denied him entry.

“This is a former Walmart that has been turned into a center for children,” Merkley says in the video. “So, behind those doors inside that Walmart are apparently many hundreds of children.”

He continued: “Last week my team contacted this program, and they contacted the Office of Refugee Resettlement, and said that Senator Merkley, that’s me, was going to be here and would like to go inside and see what’s going on, and they said no. I think it’s unacceptable that a member of Congress is not being admitted to see what’s happening to children whose families are applying for asylum.”

On CNN the next day, Merkley added: “When my team called, they were told it’s the policy not to admit anyone into these centers and we would not be allowed to enter it.”

Speaking on the condition of anonymity, a Trump administration official told The Fact Checker that Merkley’s staff requested access to the Brownsville facility on Friday evening, less than two days before he arrived.

“HHS responded explaining it has a process in place that requires the visiting member of Congress to fill out and submit the proper paperwork two weeks prior to the desired visit,” the official said. “Two weeks is requested to ensure the proper federal government employees are on site to provide the tour, rather than the non-federal, grantee staff.”

Since at least 2015, HHS has had a policy requiring two weeks’ notice for anyone trying to visit a shelter. “Requests should be submitted two weeks prior to the visit,” the policy says. “Requests not received within this time frame may be considered if there are exigent circumstances.”

So, it’s clear that Merkley was off-base when he said it was HHS policy “not to admit anyone into these centers.” He might have been allowed access to the Brownsville facility had he submitted his request with two weeks’ notice instead of two days’.

“The Department of Health and Human Services takes the legal mandate to care for these children seriously,” an HHS representative said in a statement. “No one who arrives unannounced at one of our shelters demanding access to the children in our care will be permitted, even those claiming to be U.S. senators.”

Responding to this, a spokesman for Merkley, Ray Zaccaro, said: “HHS knew that we were coming. They chose to deny access to a U.S. senator to a federally funded facility. The assertion that this visit was unannounced is categorically false.” The HHS statement also said Merkley “along with five other individuals, attempted to enter an unaccompanied alien children’s (UAC) shelter unannounced and broadcast live via social media last night in Texas.” But Zaccaro said he was the only staff member with Merkley and that the other four individuals were members of the press “who attended on their own.”

What about the claim that HHS never lets anyone into these shelters? That one smelled like Pinocchios to us. Zaccaro said Merkley’s staff asked for an “expedited approval,” which HHS has discretion to give under its policy.

“Senator Merkley’s staff was told of their policy when we requested the site visit,” Zaccaro said. “Our staff explained in turn that the senator required expedited approval for access to this facility in order to fully understand the scope and impact of the current family separation crisis. Our staff explained to the agency that he would be visiting the Brownsville Southwest Key facility on June 3 and expected to be able to inspect the facility.”

But that’s not the same as saying that the policy is “not to admit anyone.” Again, HHS has a whole procedure for these visits. There’s no blanket prohibition.

It’s worth noting that Merkley’s border tour appears to have struck a nerve in the White House. Without addressing specifics about shelters or processing centers, White House deputy press secretary Hogan Gidley said June 4 that Merkley was “irresponsibly spreading blatant lies.”

The Pinocchio Test

The way Merkley described the CBP facility in McAllen — hundreds of children in cages with only concrete floors to sleep on — sounds like something out of a Charles Dickens novel. It’s indisputable that immigration officials hold kids in chain-link fence enclosures for up to 72 hours. Whether this setup is as draconian as Merkley made it seem is not something we were able to verify.

Merkley’s other claim, that HHS has a policy of not allowing anyone to visit its shelters for immigrant children, is false. The nuanced explanation his spokesman provided us does not match the blanket claim Merkley made on CNN.

We were on the fence between Two and Three Pinocchios. As our readers know, the burden of proof is on the speaker. But Merkley and his staff were not allowed to record their tour of the McAllen facility. This leaves us with some photos we found from 2014 that prove some but not all of the senator’s detailed and sensitive claims. We can’t really hold it against Merkley if he tried to get visual proof but was barred from doing so.

However, his staff knew that HHS had a process to grant access to the Brownsville shelter. By the time the senator went on CNN to say no one was ever allowed to visit, he almost certainly knew better. Because of this obfuscation, we settled on Three Pinocchios.

Update (June 18): Since we published this fact-check on June 6, more lawmakers and reporters have been able to tour the McAllen processing center. We now have various articles and testimonials that corroborate Merkley’s claim that hundreds of children are kept inside chain-link fence enclosures. This evidence did not exist when we first published. We’re always willing to revise our fact-checks when new evidence emerges, as it has in this case.

Here’s how The Washington Post’s Sean Sullivan described the McAllen facility in a June 17 story: “Detainees are being kept in bare-bones cells surrounded by tall metal fencing inside a sprawling facility with high ceilings. The facility resembled a large warehouse divided into cage-like structures housing different groups of people. … Several of the detainees wrapped themselves in the foil blankets as they sat on benches, the ground, or on modest mattress pads on the floor of the cells.”

Our fact-check has been criticized online by many readers after an MSNBC reporter toured the McAllen facility recently and then tweeted that he wasn’t sure why we had given Three Pinocchios to Merkley.

Our Pinocchio rating was based largely on Merkley’s claim that the government had a blanket policy of not allowing visitors into the Brownsville shelter. This claim was and continues to be false, as evidenced by the fact that others have been granted access to the Brownsville facility since Merkley’s failed attempt.

Regarding the McAllen facility, what we wrote in the fact-check on June 6 still stands, “The lesson here is that, although some of Trump’s critics used outdated photographs from 2014 to attack his immigration policies, the practice of holding children in chain-link fence enclosures continues.”

Now that we have reporting backing up the details of the senator’s claim, our calculus has changed. In light of the new evidence about the McAllen facility, we are revising our ruling to Two Pinocchios. Our revised ruling is based entirely on Merkley’s claim about the Brownsville facility.

Two Pinocchios

UPDATE: After this fact-check was published, Merkley spokesman Ray Zaccaro took issue with our findings and conclusions, and we’re publishing Zaccaro’s full response.

On his June 3 visit to McAllen, TX, Senator Merkley and his staff saw firsthand the conditions of the McAllen Border Patrol Processing Center. The sight of so many children who had been separated from their parents and are now housed in cage-like enclosures was jarring and disturbing. The Administration may not like the term “cage,” but other than quibbling over semantics, they have not disputed that Senator Merkley has relayed with great detail and accuracy his account of the facility and all that he observed.

As the Washington Post has pointed out, in his comments on CNN and on Facebook Live during his visit, Senator Merkley noted that it is HHS’ policy not to allow anyone to visit the detention centers where children are currently being incarcerated. While Administration officials have said that they will consider site visits to these facilities with two weeks’ notice, they do not say that they will grant requests with such notice. Senator Merkley’s office is unaware of any such permissions granted to lawmakers (or anyone else) during the Trump Administration or, more specifically, since the enactment of its new “Zero Tolerance” policy for those crossing the border, including asylum seekers.

The Post is also correct in noting that the Senator’s request for a tour of the facility was declined by HHS officials, despite the fact that their application process does have a provision for “exigent circumstances.” Senator Merkley’s staff expressed to HHS officials that it was his view that the separation of children from their parents and their detention in facilities like the one in Brownsville are exactly the kind of exigent circumstances that require immediate congressional intervention.

While the Administration may have a written policy that allows for visits to these child detention centers, there is no evidence that Senator Merkley was in any way inaccurate in describing the Administration’s actual policy.

Instead of parsing Senator Merkley’s on-the-ground observations and the bureaucratic minutia of his site visit request, the Post should examine the misinformation and outright falsehoods offered by the Administration in response to his visit. Given the Administration’s record of cloaking their child jails in secrecy, the Post’s claim of “obfuscation” on the part of Senator Merkley and his staff would have much more solid footing if leveled at the anonymous source cited in the article. If the Post did turn its attention to those comments, there would surely be Pinocchios aplenty to be awarded.